Party Autonomy in International Property Law - Peace Palace Library

8. European Conflict Rules for the Mutual Recognition of Security Rights in Goods
‘Since the retention of title is also recognized in Austria, it is not
subject to form requirements nor to requirements of publicity; the
change of situs of the sold goods is here irrelevant for purposes of the
conflict of laws.’ 11
Two other Supreme Court decisions deserve special mention, since they
deal with a specific situation that recurs sometimes under comparable
circumstances. Both cases relate to sales by a Swiss seller to an Austrian
buyer living in Austria. The validity of the security right was doubtful,
since in Switzerland a retention of title is effective (vis-à-vis third persons)
only if the retention of title is entered into a register located at the place
of business of the purchaser. By definition, however, in cases of exports
from Switzerland the importer resides abroad, so a registration in a Swiss
register is not feasible. In two cases, the Austrian Supreme Court decided
that although no registration of the retention of title had been effected,
the agreed retention of title is fully effective in Austria as soon as the purchased
goods are delivered to the buyer in Austria. 12 The Swiss legislator
has now helpfully clarified the situation: The Law on Conflict of Laws of 1
January 1989 provides that in the case of exports to foreign countries the
registration of a retention of title in a Swiss register is not required. 13
b) France
The former fundamental hostility of French courts towards foreign nonpossessory
security rights 14 has today, in view of an increasing number of
French legislative instruments for non-possessory security, given way to a
more liberal attitude. Foreign simple retentions of title are today recognized
implicitly in the French buyer’s bankruptcy if the substantive and procedural
requirements of French insolvency law are met by the foreign seller. 15
11
Cf. S.Ct. 19 January 1989 (supra n. 9).
12
S.Ct. 26 April 1961, SZ 34 (1961) no. 67 (p. 183: the reservation of title
became effective ‘at once’); more precise is S.Ct. 13 May 1987, IPRE 2 (1983-
1987) no. 114, p. 243 (effective if the object is delivered to Austria).
13
Swiss Law on Conflict of Laws of 1989 Article 103.
14
Cf. Cass. 24 May 1933, JDI (Clunet) 1935, 380; Cass. 8 July 1969, ibidem 1970,
916.
15
Cf. e.g. Cass. 22 December 1975, Bull.civ. 1975 IV no. 313: the German
seller had terminated the sales contract before the insolvency proceeding was
opened. Cf. also Cass. 5 March 1996, Bull.civ. 1996 IV no. 73: successful
Ulrich Drobnig
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